Clash of Competing “Rights” Claims Raises Free Speech Concerns

Tension between free speech advocacy and efforts to curb “hate speech” has arisen over the past year as the result of recent initiatives at the United Nations (UN) and by the Obama administration.

Freedom of opinion and expression have long been recognized as fundamental, and a recent UN Human Rights Committee “General Comment” affirmed these twin liberties as “the foundation stone for every free and democratic society.”

Yet while heralding these bedrock rights, others are seeking to curtail criticism of homosexual behavior and shelter certain religions from “defamation.” Such efforts also butt against religious liberty and conscience rights, two other bright constellations in the firmament of fundamental rights.

The tension became evident in a 2010 initiative by the UN Office of the High Commissioner for Human Rights (OHCHR), which sought to reconcile broad free speech protections found in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) with article 20, which calls upon governments to limit “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

Though the ICCPR is largely a charter of “negative rights” protecting liberties from government intrusion, article 20 is anomalous, calling for affirmative governmental action. Concern over Article 20’s compatibility with domestic constitutional guarantees caused the United States (US) and other western governments to opt out from this particular article at the time of the ICCPR’s ratification.

Critics noted that in calling for dialogue on the interplay between free speech and “hate speech”, the OCHCR conspicuously misquoted the text of Article 20, stating that it banned “incitement of hatred” – a lowered standard that could cause provocative speech which did not incite violence to be banned. Such concern is not merely theoretical, as a number of Western nations once tolerant of the free exchange of ideas have enacted strictures curbing non-violent speech deemed critical of certain groups and individuals.

For example, Germany’s criminal code punishes “insults” – defined as “an illegal attack on the honor of another person by intentionally showing disrespect or no respect at all” – with up to one year’s imprisonment.

Fortunately, free-speech stalwarts such as the UN Special Rapporteur on Freedom of Expression, Frank La Rue, pushed back, and the General Comment on ICCPR article 19 issued last September is largely protective of free expression while giving short shrift to article 20.

How such interpretations work in practice is another matter, however. “Workshops” on the interplay of the two articles have taken place in a number of cities around the world, including Vienna and Santiago de Chile. At the latter, most panelists sought to import “sexual orientation,” a concept absent from the ICCPR, as a category equivalent to the specified categories of nationality, race, and religion.

The cheerleading at the Santiago meeting in favor of “sexual orientation” speech restrictions by the Special Rapporteur on Freedom of Religion and Belief, Heiner Bielfeldt, was especially disconcerting. It indicated lack of awareness or concern over heavy-handed state restrictions on legitimate religion-based criticism of homosexual behavior by the rapporteur tasked with speaking out in defense of religious liberties.

Attempts to punish religious speech include Sweden’s criminal prosecution of a Pentecostal pastor for asermon he gave in church critical of homosexual behavior and human rights proceedings in Canada against a pastor who had written a letter to a newspaper critical of the “homosexual agenda” and its threat to “innocent children and youth.” A human rights panel held the cleric to have violated a provincial statute that prohibited speech “likely to expose a person or class of persons to hatred or contempt” due to the “sexual orientation of that person or class of persons.”

Global concern over the issue has been heightened by the Obama administration’s initiative, announced last month, that would make promotion of the rights of “lesbian, gay, bisexual and transgender” persons a high US foreign policy priority. US embassies across the globe are now tasked with advocating repeal of anti-sodomy laws in nations which have them and with monitoring groups, including religious groups, deemed opposed to this agenda.